Unmarried Fathers Guide to Paternity, Custody, Parenting Time and Child Support in Minnesota

Transcription

1 Unmarried Fathers Guide to Paternity, Custody, Parenting Time and Child Support in Minnesota 3rd Edition Revised January 2011 Copyright 2011 Central Minnesota Legal Services This guide may be reproduced in its entirety without express permission from the author. Reproduction for commercial sale or benefit is prohibited. Quick Reference: Table of Contents Common Legal Terms... 3 From the Beginning... 5 Fathers' Adoption Registry... 5 Paternity... 8 Genetic Testing Physical Custody Legal Custody Parenting Time Moving the Children Out of Minnesota How the Child s Name is Decided Child Support Tips for Working with Child Support Charts How a Recognition of Parentage (ROP) differs from a Paternity Order... 9 Understanding Family Court Actions In Minnesota for Unmarried Parents Links to Additional Resources Written Resources & Court Forms Self-Help Ctrs, Legal Clinics, & Legal Aid Programs Serving Fathers in Minnesota.41 (Sample) Recognition of Parentage Form Certified ROP Request Form

2 About this guide This guide has basic information about paternity, custody, child support, and parenting time for unmarried fathers in Minnesota. Every state has different laws on family law. This guide is for Minnesota only. In this guide, the word you means the unmarried father. Even though not all biological mothers have physical custody of their children, the words mother and custodial parent mean the same thing in this guide. This is because if unmarried parents do not have a court order about custody, then the mother of a child born to unmarried parents has sole legal and physical custody. Some of the legal ideas and legal standards in this guide are like those for divorced fathers but there are many important differences. For example, an unmarried father has to first establish himself as the legal father before he has any right to ask for court-ordered custodial or visitation (parenting time) rights. This guide explains how this is done. If someone other than the mother has physical or legal custody of the child, different legal standards and/or different legal proceedings than those discussed in this guide may apply. Examples of people other than the mother who may have custody are the state or county through child protection proceedings in juvenile court, or a grandparent or relative through a custody action in family court. THIS GUIDE PROVIDES GENERAL LEGAL INFORMATION. IT IS NOT A SUBSTITUTE FOR ADVICE FROM AN ATTORNEY ABOUT YOUR PARTICULAR SITUATION. CHECK WITH AN ATTORNEY FOR ANY RECENT CHANGES IN LAW. How this guide was made possible This guide was first produced in 2004 by Melissa Froehle, an attorney at Central Minnesota Legal Services providing legal assistance to participants in the FATHER Project, a program serving low-income unmarried fathers. It was most recently updated in 2011 with the assistance of attorney Walter Burk, Lisa Burkhartzmeyer, Child Support Supervisor in Scott County Human Services, and the Ramsey County Attorney s Office, Child Support Section. Support for the initial production of this guide was provided by the Berkeley Law Foundation, New York University s Public Interest Law Foundation, Central Minnesota Legal Services, Goodwill/Easter Seals (MN) FATHER Project, Minnesota State Bar Foundation, Southside Community Health Services, Minnesota Fathers & Families Network, and the African American Men Project of Hennepin County. The author is solely responsible for the information in this guide. This guide is available as a free download pdf file from the Minnesota Fathers & Families Network (MFFN) website at and is also available free at 3 rd Revision January nd Revision September 2007 Revised January 2005 First Edition, October 2004 Copyright 2004 Central Minnesota Legal Services 2

3 Common Legal Terms Adjudicated Father The man that a court or a Recognition of Parentage (ROP) says is the legal father of the child. Affidavit A written document made under oath. The person signing it is saying that these are the facts as they know them. Best Interests of the Child Minnesota law looks at what is best for the child when deciding about custody for the first time. This is called Best Interests of the Child. It is a legal standard of 13 factors. The factors are on page 16. Legal Custody The parent(s) with legal custody make the big decisions in the child s life. Things like choices about the child s school, religion, and major medical decisions. The court likes parents to have joint legal custody. This means that they have equal rights in making decisions. But, if there has been domestic abuse or if the parents cannot get along at all, the court does not want them to have joint legal custody. Motion A formal request asking the court to do something. Parenting Time This is the time that a parent spends with the child. It does not matter who has physical custody. Mostly, Parenting Time is used when talking about the parent who does not have physical custody and the time they spend with the child. This used to be called visitation in Minnesota. Paternity Paternity has to do with who is the legal father of a child. The biological father is not always the legal father. Only the legal father has the rights and responsibilities of a father. Paternity can be established when both the mother and father sign a Recognition of Parentage (ROP) or with a paternity action in court. You do not have to have genetic testing (DNA testing) before deciding paternity, but is often a good idea. Presumption of Paternity In some cases, the court will take for granted that a certain man is the father of a child, like a husband. The man has to prove he is NOT the father if he does not agree. For more details, see page 12. Paternity Order A court order that says who the legal father is. The paternity order also tells you what rights the parents have. The order might say who has physical and legal custody of the child, and if parenting time is given to the noncustodial parent. Physical Custody The child lives with the parent who has physical custody. That parent is in charge of the child s day-to-day care. One parent can have sole physical custody or both parents can have joint physical custody. One parent can have sole physical custody even if both parents have joint legal custody. Whereas twenty years ago almost all singlemother families were headed by a divorced or separated mother, almost half of all single-mother families today are headed by a nevermarried mother. Sorensen & Halpern, 1999 Joint Physical Custody When the child lives part-time with one parent and part-time with another parent. Joint physical custody is not always 50/50 between the parents. Pro Se for oneself. Pro se means that you do not have an attorney and are representing yourself in court. Recognition of Parentage (ROP) A form that unmarried parents can sign to create the legal relationship between the father and the child. 3

4 Why would an unmarried father want to go to court if there are not any problems? There are many reasons for an unmarried father to go to court or file a motion to set up parenting time or custody. You may want to go to court or get a court-ordered agreement even if you do not have any problems seeing the child. A court ordered agreement will make sure your rights are protected. A court order may be especially important to get if you have the child living with you but do not have a court order that says that. Here are some reasons to go to court: To make sure you get to spend time with your child. If you never set up parenting time or custody rights in a court order, you can only have the child if it is okay with the custodial parent. This is because the law gives an unmarried mother sole legal and sole physical custody of the child. Only a court order can change that. If there is no court order, the custodial parent can change her mind about letting you see the child. To get notice if the mother wants to move out of state. If you have court-ordered parenting time rights, the mother cannot move out of state with the child unless you say it is okay. Or she has to get a court order saying it is okay to move. If there is no court order giving you parenting time rights, the custodial parent can move out of state without asking. It does not matter if you are a big Question From An Unmarried Father I signed a Recognition of Parentage but have not been to court, except for child support. My child s mother drops my son off but is always cutting short my time with my kid. She insists that she take him right away even when she comes to get him hours early from what she told me, and sometimes I do not get to see him at all. Can she do this? Answer: Yes. The child s mother has sole legal and sole physical custody until a court changes this. If you want to be able to enforce the time you have with your child, you need to go to court to establish custody and parenting time. Otherwise, the mother cannot be made to let you spend time with your child. part of the child s life. If the mother asks the court for permission to move, the court must look at several things to decide if she should be allowed to move. These things include your relationship with the child and how possible it would be to continue that relationship, looking at how far the mother is planning to move and your financial situation. See pages for more information. To get notice if the mother wants to give someone else temporary custody. Sometimes, a mother gives temporary custody to someone else. She does not have to tell you about it or ask you if it is okay UNLESS you have court-ordered rights. There is a form called a Delegation of Parental Authority that a custodial parent can use to give another person temporary custody of the child for up to 1 year. The legal father will only get a copy of this form if he has court-ordered parenting time rights that are not supervised. There also cannot be an Order for Protection (OFP) in place against the father. To get holiday time with your child. The court can order that you get to spend time with your child on certain holidays, birthdays, etc. You can also ask for vacation time with your child. The court order is enforceable. This means that that if the other parent is not letting you get the time you are supposed to, there are ways to make them follow the rules of the order. To get make-up parenting time for time that you have been denied. If the mother is not letting you see your child or if you have had problems with your parenting time, you can ask the court for help. The court can give you extra time with your child to make up for the court-ordered parenting time that you did not get. 4

5 To enforce your parenting time rights. If you have ongoing and serious parenting time problems, the court can hold the other parent in contempt of court or change custody. The problems must be serious before the court will even think about these options. You must have gone to court at least once or more to try to make the other parent follow the parenting time order. To qualify for the parenting expense adjustment. Under the child support law in Minnesota, parents with court ordered parenting time can get a parenting expense adjustment. Your parenting time has to be between 10 and 45 percent of time with the child. The adjustment lowers the basic child support amount you have to pay by 12 percent. Only parents with court ordered parenting time are supposed to get the adjustment. See page 29. Going to court may not always be the best choice. You have other options. See a list of options in the section about Court- Ordered Parenting Time, starting on page 22. Your Situation From The Beginning... Mom and Dad are unmarried and have a child. Mom has sole physical and sole legal custody until a court order says differently. WHY? The mother starts out automatically with sole physical and sole legal custody. This is because there is usually no question about who the mother is since she gave birth to the child. Because a father cannot be decided in the same way, the legal system waits for a signed Recognition of Parentage (ROP) or a court order that names a legal father. Only then can the father get the rights and responsibilities that are part of being a father. Before Paternity The Fathers Adoption Registry. If you are an unmarried father, the Minnesota Fathers' Adoption Registry is a way for you to be told if a petition to adopt a child that you may have fathered may be filed in the State of Minnesota. WHY IS IT IMPORTANT TO REGISTER? In Minnesota when an unmarried mother wants to place a child up for adoption, she does not have to name the person she thinks is the father before an adoption can take place. But, if the father of the child has been legally recognized as the father, then he has to give his okay for the adoption. On the other hand, if the father is not legally recognized, he may not even get notice of the adoption. The Minnesota Fathers Adoption Registry is important because if you are properly registered with them, then you have to be given notice of the adoption. When you get notice you can start the process to become the child s father and be involved in what happens with the child, if you want to do that. If you are not legally recognized as the child s father, registering with the Fathers Adoption Registry may be the only way to make sure you get notice if a child you may have fathered is put up for adoption. Even if you do not think the mother is going to place the child up for adoption, you should still register if 5

6 you want to be absolutely sure that you can try to have a relationship with your child or play a part in any adoption process in Minnesota. The law also says that not knowing about the pregnancy or birth is not a good enough reason for not registering. For more information, call the Fathers' Adoption Registry. This is an area in which acting quickly is important. You may also wish to seek legal advice. Question From An Unmarried Father I just learned my ex-girlfriend is pregnant and I am probably the father. I don t know where she lives or if she is still in Minnesota. Should I still register here with the Fathers Adoption Registry, even if I don t know for sure that she is living here or when the baby is due? Answer: Yes. Even if you don t know when or where the baby will be born, you have to register in Minnesota no later than 30 days after the child s birth to protect your rights in Minnesota to know about a potential adoption. (You may need to register with similar registries in other states to protect your rights in those states.) In a case decided by the Minnesota Supreme Court in 2002, the court said that a potential father, who did not know that his pregnant ex-girlfriend was living in Minnesota and learned of the mother s whereabouts and registered on the 31 st day after the child s birth, was not entitled to notice of the adoption because he registered past the 30 days. This meant he could not stop the adoption. ARE THERE SITUATIONS WHEN I WILL BE TOLD ABOUT ADOPTION IF I DO NOT REGISTER? It depends. The following are some situations when you should get notice of an adoption for a child you may have fathered: If you are legally established as the child s father (declared the legal father by a court order or a Recognition of Parentage) or If you were married to the child s mother within 325 days before the child s birth or married the mother within 10 days after the birth of the child or If you filed a paternity action within 30 days after the child s birth and the action is still pending or If your name is on the child s birth record as the father (in Minnesota, only a father who is legally the child s father can have his name on the child s birth record) or If you have supported the child to a large extent or If you were openly living with the child or the mother or both. Note: Even in these situations, it is still a good idea to register to be sure you will be notified. 6

7 WHAT RIGHTS DO I HAVE WHEN I REGISTER? If the child that you registered for on the registry is put up for adoption, you have the right: to get notified of the adoption proceeding. Once notified, you have certain rights: you can deny paternity (and give up your rights to establish yourself as the child s legal father and be involved in the decisions for the child) or you can consent to the adoption or you can start on the path to claiming parental rights for the child or do nothing, and any parental rights that you might have had will be terminated. If you want to claim parental rights for the child, you must get yourself legally established as the child s father. Once you get notice of the adoption proceeding, you must file a form that you intend to claim parental rights. You must also start a paternity action by having the birth mother personally served with the paternity action documents. Both of these separate actions must be done within 30 days of getting the notice of the adoption. You also have the right: To get a free lawyer, if you are low-income, and have filed an intent to claim parental rights with the court on time, and To get genetic tests. Once you are legally established as the child s father, you have the right to be involved in what happens with the child. You can, for example: Ask the court for custody of the child A father can register on the Be a part of making decisions in the adoption plan Adoption Registry before Agree to the adoption Agree to the adoption but seek a contact agreement the child s birth but MUST Contest the adoption be registered NO LATER THAN 30 DAYS AFTER If you do not file the intent to claim parental rights form with the court on time, you may have given up your right to THE CHILD S BIRTH. contest the adoption. In this case, you would not get any further notice of hearings and your okay to the adoption is not needed. If a child that you fathered is adopted, being a part of the process can also help make sure that the child knows about your social and medical history. WHEN DO I REGISTER? You can register anytime during the pregnancy, but NO LATER THAN 30 DAYS AFTER THE CHILD S BIRTH. If you do not register on time you might not be told about the adoption and can lose any rights you may have as a father in the adoption process. Registering means filling out and mailing the required forms. Your signature is required to put your name on the registry. Just calling the toll free number does not count! HOW DO I REGISTER? It is free to register. Contact the Fathers' Adoption Registry: Minnesota Department of Health 85 East 7 th Place, 3rd Floor P.O. Box St. Paul, MN Voice: (651) , toll free far@health.state.mn.us. CALL THE FATHERS' ADOPTION REGISTRY OR AN ATTORNEY IF YOU HAVE ANY QUESTIONS. 7

8 Establishing or Deciding Paternity When a child is born to an unmarried mother the child has no legal father until one is established by law. Establishing the father s and child s legal relationship is what is meant by establishing paternity. When a child is born to an unmarried mother, paternity can be decided in one of two ways: (1) by both parents signing a Recognition of Parentage (ROP). The ROP must be filed, and accepted by, the Minnesota Department of Health, Office of the State Registrar. An ROP does not automatically give the father the right to see the child. An ROP gives the father the right to go to court to ask for custody or parenting time. (2) by court order in a paternity action (Paternity Order). You may be granted some custodial or parenting time rights in the paternity action. Although parents are often asked for a copy of the birth certificate by different agencies, for example, if you apply for some type of benefits from the government, the birth certificate is NOT the official proof of your paternity needed in a court action. The official proof needed for a court action is the original or certified ROP or a certified paternity order itself. This is one reason why it is important to know how by ROP or court order your paternity is established. As the chart on page 9 shows, the different ways to establish paternity have different effects on your rights. Question From An Unmarried Father My name is listed on the birth certificate as the father. Doesn t that mean I m already the legal father? Answer: Generally yes. In Minnesota, if you are not married to the mother then your name should only be listed as the father on the birth certificate if your paternity has already been decided. An unmarried mother is not allowed just to put any man s name on the birth certificate only a legal father is supposed to be on the birth certificate. However, there are sometimes when an unmarried father s name mistakenly appears on the birth certificate even though his paternity is not established. This may happen, for example, if the parents report they are married when the child is born, even though they are not legally married. (A husband s name can be listed on the birth certificate because he is presumed by law to be the legal father.) Once you sign an ROP and it is filed with the State, the State changes the child s birth record to reflect the father s name. To change the birth record when your paternity was established by a court order, the court order must state that the father is the legal father and that his name and other information is to be added to the child s birth record. If the child s last name is to be changed, the court order must also state that the child s last name is to be changed on the birth record. There is a fee to change the birth record when there is a court order. Sometimes, if the court order establishing paternity goes to the State directly from the court of the county, the parents are not charged the fee. 8

9 How a Recognition of Parentage (ROP) differs from a Paternity Order The Recognition of Parentage: A Paternity Order (court action): Paternity Decides who the legal father is. Decides who the legal father is. Do the parents have to agree on who the legal father is? Both parents have to agree to sign an ROP. With an ROP everything else must be done by a separate court action. Parents do not have to agree for the court to decide paternity. Genetic tests can help resolve conflict. Child Support Physical and Legal Custody Parenting Time OTHER RIGHTS: A child support action must be done separately in court. Physical and legal custody stays the same as it was before the ROP was signed: The mother has sole legal and physical custody. Parenting time rights are not decided. The father does not automatically have any parenting time rights. Sets or reserves a child support order. Decides which parent(s) have physical and legal custody. Decides what parenting time rights the parent without physical custody has. Genetic Testing No genetic testing is done. You give up the right to ask the court for it to be done later.* Mother or alleged father can ask the court to order genetic testing. Court-Appointed Attorney You will not be given a court-appointed attorney now or later on paternity, custody or parenting time issues. The court must appoint an attorney to represent either parent on paternity if the parent is low income (income and assets test). The parent has to ask for it. This attorney also helps with custody and parenting time issues that come up in that court action. Possible Adoption A valid ROP helps make sure that the father finds out about any possible adoption. But it is not a guarantee because either party can cancel it within 60 days of signing. Before the court order deciding paternity is final, the father might not get notice of adoption. Unless he is registered with the Fathers Adoption Registry. How long does it take? A Recognition of Parentage can be signed in one day. A court action takes longer (months, usually). *You can get genetic testing BEFORE you sign an ROP. See the options box on page 14. 9

10 Establishing or Deciding Paternity, Continued About the Recognition of Parentage: Once both parents sign an ROP and it is filed with, and accepted by, the Minnesota Department of Health, it is a final decision on paternity. It is the same legally as a court order stating that you are the father. The only time the ROP is not final is if: (1) the mother was married during the pregnancy or at birth, or (2) another ROP is signed claiming a different man is the legal father, or (3) one or both parents are minors (under age 18). 1) If the mother was married during the pregnancy or at birth, the husband or ex-husband is thought to be the legal father. This is called a presumption of paternity (see page 12). If the husband wants to give up his presumption of paternity, he can sign a form called a Husband s Non- Paternity Statement and file it with the State. This form must be signed within 1 year after the child s birth. Then the man that signed the ROP can be the legal father. If the Husband s Non-Paternity Statement is not signed within 1 year, then a court action is necessary to decide who the legal father of the child should be. 2) What happens if 2 ROPs are filed for the same child? If the mother signs and files an ROP with you, and another ROP with another man, then each ROP is just a presumption of paternity. This is a very unusual case that would probably need a court action to figure out who is the legal father. Normally, once an ROP is filed with the Minnesota Department of Health and is accepted, a second ROP for the same child would be turned down and sent back to the people who signed it. 3) Parents under 18: If you or the mother are under 18 years old when the ROP is signed, the ROP is only a presumption of paternity. This means that you may still need a court order to decide paternity if you want it decided while you are still younger than 18. Once you are over 18, and if the county child support office is involved, there may be a difference of what happens next. Some counties will pursue a paternity adjudication (paternity court order) in court in any case in which it is involved, and consider the ROP still to be a presumption of paternity. Other counties will consider the ROP final six months after the youngest parent turn 18 ½, and they can proceed directly with establishing child support without having to get a paternity court order. Both practices have been accepted by the courts. If you are a minor parent that signed an ROP, or were a minor parent when your child was born and signed an ROP, check with your local child support office to see how they will proceed. Fathering is a parenting style distinctive from mothering. Thus fathers add an important dimension to children s intellectual and social development. Canceling a Recognition of Parentage The mother or father who signed the ROP can revoke (cancel) it within 60 days of signing it, for any reason. The revocation must be in writing, notarized, and filed with the Minnesota Department of Health, Office of the State Registrar. A revocation form is available on the state office of child support s website 10

11 or from any child support office. See the Written Resources section at the end of this guide for the website and phone number. After 60 days, only a court can cancel the ROP. This is called vacating. Vacating an ROP after 60 days is hard to do. There are also time limits- so act quickly! The person bringing the court action must ask the court to vacate the ROP. These are people that can start a court action: mother father child husband who signed a non-paternity statement or child support office. The court action has to be based on a good legal reason. The legal reasons the court will accept are: someone lied in signing the document (fraud) duress, meaning you were forced to sign it, or material mistake of fact. This means you thought one thing and another thing is true. This type of court action has time limits: the mother, father or husband must bring the action within 1 year of signing the ROP. Or within 6 months after getting genetic test results that show that the man named on the ROP is not the father. A child can bring an action within 6 months of getting genetic test results or before they turn 19, whichever is later. You may need an attorney for this type of court action. About the Court Order/Paternity Order Process: If the parents do not sign a Recognition of Parentage, the other way to establish paternity for unmarried parents is through a court action (often called a paternity adjudication ). This process is often started by the county child support office, because paternity must decided before child support can be ordered. However, other people can start a paternity action, such as the mother, the alleged father, or even someone on behalf of the child. Research has shown that fathers, no matter what their income or cultural background, can play a critical role in their children's education. When fathers are involved, their children learn more, perform better in school, and exhibit healthier behavior. Even when fathers do not share a home with their children, their active involvement can have a lasting and positive impact. There are advantages and disadvantages to the court U.S. DOE process. Refer to the chart on page 9. To learn more, you can read the booklet called Being a Legal Father: Parentage information for mothers and fathers (See the Written Resources section at the end of this guide for the website), find more information at and/or consult an attorney (some options for free or low-cost consultations with an attorney are listed in the Resource section, or contact your local legal aid office). Establishing paternity is one of the biggest decisions you will make in your life. It is very important to understand all of the legal results from establishing paternity. 11

12 A common question: HOW CAN THE COURT DECIDE I M THE LEGAL FATHER IF I WASN T AT THE COURT HEARING? A court can make a decision about paternity even if the father, or mother, does not show up or take part in the hearing process. These are called default orders. What this means is that the parent gives up his or her rights because they did not show up. In these cases the court decides paternity without genetic testing, unless the mother or another person that is part of the paternity lawsuit asks for the court to order genetic tests. The court usually decides paternity in cases without genetic testing by listening to who the mother says the father of the child is. She makes this statement under oath. That is why it is important to go to court if you are served with court papers for a paternity case. Go to court whether or not you think you are the father. If you do not go, A court can make a decision about paternity even if the father, or mother, does not show up or participate in the hearing process. Other paternity information: What is a presumption of paternity? you may lose the right in the future to argue that you may not be the father of the child. And if you are the father, it is important for you to be there. Important things can get decided at this time in addition to paternity, such as child support, custody and parenting time rights, the child s name, etc. If a man has a presumption of paternity, he is considered the legal father by the court. If he does not agree he is the father, he has to prove it with clear and convincing evidence. If 2 or more men are presumed the father of a child, then the court must decide the child s paternity. Some presumptions of paternity are listed on page 10 (when the mother was married, if 2 ROPs are signed for the same child, or if one or both of the parents are under 18). Other presumptions of paternity happen when people are married, or try to get married, during pregnancy or after the child s birth. If this applies to your situation, you should talk to a lawyer. The current law in Minnesota says that a man who receives the child into his home and openly holds out the child as his biological child may be presumed by law to be the child s father. But if the man is not married to the mother, he still needs a court order or ROP to be the legal father. If you have a question about how presumptions of paternity might apply to your situation, you should talk to a lawyer. This can be a complicated area of law to understand. What is a Declaration of Parentage? Before the Recognition of Parentage form was created there was another form, called a Declaration of Parentage, which some parents signed for paternity purposes. This form could not be used after August 1, If you have older children, you may have signed a Declaration of Parentage and not a Recognition of Parentage. If you signed a Declaration, you have a presumption of paternity, but you probably still need to go to court to finalize your paternity. This is especially true if you want to get custody or parenting time rights. A child support order could have been established with just a Declaration without a final court order on paternity. You can ask for a copy of your Declaration of Parentage. You use the same form that you use to ask for a copy of your Recognition of Parentage. A copy of this form is at the back of this guide. 12

13 The Role of Genetic Testing in Establishing Paternity Genetic testing is often very helpful and usually a good idea in cases in which paternity needs to be established. Genetic testing is usually done by buccal swab (cotton swab rubbed inside the cheeks for cell collection) or occasionally done by blood tests (blood drawn from the arm). The buccal swab is used most often because it is easy and painless, and just as accurate as a blood draw. Most samples can be taken anytime after the child s birth. Test results usually take a few weeks. Genetic testing can show that a man is not the biological father of the child or it can show a greater than 99 percent probability that the man is the biological father. Today s test results are highly scientifically reliable and readily accepted by the courts. (There is a procedure in the law to challenge test results, but it rarely happens and in those cases it is usually due to some highly unusual situation.) If you want a genetic test to find out if you are the biological father of a child, you may not need a court order if the mother agrees to do the testing. To get tested, parents can talk to hospital staff about genetic testing before or at the time of the child s birth, contact their county child support office or contact a private lab. If the county child support office does not have an open case and paternity has not yet been established, either parent can apply for services from the county and request genetic testing. When testing is arranged through the county child support office, the cost for the test is much lower than a private lab. What about over-the-counter paternity tests? There are companies that are now advertising over-the-counter paternity tests that you can buy at a local drugstore. These test results are usually not admissible in court. This is because usually there is no one who is a witness that the person who claims they submitted the test swabs is in fact the person who actually did. You may be able to find out if you are in fact the biological father this way, but if you take it to court or to the county child support agency, you may still need to submit to another round of genetic testing that follows the proper legal requirements to be considered legally valid. When are genetic tests required? Genetic tests are not required before signing a Recognition of Parentage. It may be a good idea to get genetic tests before signing the ROP, but it is not required. One reason it may be a good idea, even if you think you are the biological father, is that it forever removes any doubt. This can prevent future disagreements or disruptions of your father-child relationship that sometimes happen later on if questions are raised about who really is the biological father for the child. Another reason it is a good idea is because when you sign the ROP, you give up your right to get genetic testing later on. Generally this means that you cannot go to court later and ask the court to order a genetic test just because you now decide you want one. (See section on page about canceling or vacating an ROP.) If you are in the situation in which you signed an ROP more than 60 days ago, and now want genetic testing, you may need to consult an attorney. Genetic tests may be required in a court action to decide paternity. The mother, alleged father or other parties to the court case, such as the county child support office, may request--and the court will order--genetic testing. Some child support agencies have a policy of requiring 13

14 genetic testing in cases in which they are involved in establishing paternity through the court process. Contact your local child support agency if you have questions about this. What options do I have if I want genetic testing before signing a Recognition of Parentage? See box below. Question From An Unmarried Father / OPTIONS WHEN PATERNITY IS NOT YET ESTABLISHED I think that I am the father of a child, but paternity has not yet been decided for the child. I think I want to sign the ROP, but I would also like to have genetic tests done to make sure that I am the biological father. Do I have to wait until I m brought to court to get genetic tests? Answer: No. If you and the mother agree, you can schedule and pay for genetic testing yourself. If you do not have the money to pay for genetic tests, you can ask the child support office to help you. The child support office helps mothers and fathers establish paternity. They can usually help you set up genetic tests before the court process is started (unless the court process has already started). Call the county child support office to ask for this help. See the Written Resources section at the end of this guide for the website and phone number. If you ask the child support office for help in establishing paternity, they will also set up child support if the mother is getting public assistance. But, they must pursue child support in any case where the mother is receiving public assistance, even if you do not ask for help in getting genetic testing. For more information see the child support section of this guide on page 28. You can always sign an ROP after you obtain genetic test results if the child s paternity has not yet been established, but you cannot get the child support agency to help you get genetic tests done after you sign the ROP. The only exception to this is if you are within 60 days of signing the ROP, then you can revoke the ROP and ask for genetic tests. The next sections talk about custody and parenting time. The court forms you need to use and the legal standards that the court uses to make custody and parenting time decisions depend on whether you have a final, accepted ROP or a final Paternity Order. 14

15 After Paternity is Decided: Understanding Family Court Actions In Minnesota For Unmarried Parents Court forms are available on the State Court Website at How to File Court Actions without an Attorney Child born to unmarried parents Mother has sole legal and physical custody until a court order says differently. 2 ways to establish paternity (called being Pro Se) Recognition of Parentage signed by both parents and filed with the state. A Paternity Order from court usually: Establishes physical & legal custody Establishes parenting time Establishes child support Child Support Custody Parenting Time County or parent starts court action to establish child support order. This action happens in the expedited child support process. If a parent wants to establish custody: File a Motion to Establish Custody and Parenting Time in District Court. If a parent wants to establish parenting time: File a Motion to Establish Custody and Parenting Time in District Court. If the child support order needs to change, either parent can file a Motion to Modify Child Support (the county can also initiate this). If a parent wants to change custody, either parent can file a Motion to Change Custody. If a parent has a problem with parenting time, either parent can file a Motion for Parenting Time Assistance. If the child support order needs to change, either parent can file a Motion to Modify Child Support (the county can also do this). If a parent wants to change custody, either parent can file a Motion to Change Custody. If a parent has a problem with parenting time, either parent can file a Motion for Parenting Time Assistance. 15

16 Establishing Physical Custody: Who should the child live with? The court looks at many different things the first time it decides custody. But the decision depends on the facts of each specific case. It is difficult to change a judge s decision about custody. The court looks at the following 13 factors to decide what is in the best interests of the child. This is for the very first time the court decides custody. These factors are: 1) what each parent wants for custody; 2) what the child wants. This only counts if the child is old enough. Generally a child must be at least 10 years old before a court will ask about what they want. But the court will look at each child s situation and decide if the child is old enough or able to say what they want. 3) who is the child s primary caretaker; 4) the closeness of the relationship between each parent and the child; 5) the situation and relationship between the child and parents, siblings and other people who may play a big part in the child s life (like grandparents or parent s new partner); 6) the child s adjustment to home, school and community; 7) the amount of time the child has lived in a stable and good environment and the need to maintain what the child is used to; 8) the permanence of the proposed custodial home. For example, does the mother or father have a new boy or girl friend? If they live together, how long has it been? Is it likely to last? 9) the mental and physical health of everyone involved; 10) the ability and willingness of the parties to give the child love, affection and guidance, and to keep educating and raising the child in his/her culture or religion; 11) the child s cultural background; 12) if there is, or has been, domestic abuse by one parent against the other. How has that affected the child? 13) the willingness of each parent to support and allow the child to spend time with the other parent (unless there is, or has been, domestic abuse). Custody Evaluations If parents do not agree about custody, the court may order an investigation. The investigator will report about what kind of custody and parenting time are in the child s best interests. These reports are usually called custody evaluations. Judges rely heavily on custody evaluations in making their decisions. It is important to participate in this process. Custody evaluations may be done by: court services, a department of the county that is assigned to complete these reports (typically in larger counties) or a guardian ad litem or a private custody evaluator. You may have to pay for a custody evaluation. Custody evaluations usually take at least 4 months to do. They might do things like: interview both parents, make a home visit with each parent, observe the child with each parent, do a records check (criminal, child welfare, mental health, and school records of the child), or do a psychological evaluation or chemical dependency assessment, if needed. 16

17 After getting all the information, the evaluator makes a detailed report to the court. The evaluation will look at each of the 13 best interest factors listed. If a parent is asking for joint legal or joint physical custody, the evaluator will also look at 4 other joint custody factors. Judges take these evaluations very seriously because the evaluator has investigated and analyzed the case. If a parent does not agree with the custody evaluator s suggestions, the parent can usually ask for a trial. At the trial, the parent can have evidence and witnesses to show why they think the evaluator s suggestions should not be followed by the judge. But it can cost a lot of money and is generally hard to win custody with an evaluation that is not in your favor. Once a court order deciding custody is final, any future court actions about custody have to be requests to change (or modify) custody. This includes a paternity order that sets custody. A request for a change in custody is harder to win than your first request for custody. See section on Changing Physical Custody. Changing Physical Custody Once the court makes the very first custody decision, it is generally very hard to change it later unless there is harm to the child or the parents agree. To change custody, the court can only look at facts that have happened since the very first custody order was made. They can also look at facts that were not known to the court at the time of the first court order. The change of custody must be in the best interests of the child. IMPORTANT There are time limits on asking to change custody. The court can only consider a motion to modify custody if at least 1 year has passed since custody was first set by a court order. If you asked for a change already and had a decision from the court, then you have to wait 2 years. In emergency situations, these time limits can be waived. If the time limits have passed, and there is a change in facts since the last order, the court can change custody only if: (1) Agreement: Both parents agree to the change of custody; or, It s not hard to BECOME a father, but it is hard to BE a father. Having a child doesn t make you a man but taking responsibility as the father of your child will. (2) Integration: The custodial parent has let the child become part of the other parent s home; or, (3) Harm: There has been a big change in the child s situation, and the child s present custody harms or puts the child in danger, physically or emotionally. The benefits of changing custody have to be greater than the harm likely to be caused by a change in environment; or, (4) Custodial Parent Moves Out of State, Even Though The Court Said They Could Not Move: If the court said the primary custodial parent could not move out of state with the child, but they did anyway. See page Lee Fisher, Center for Families & Children (5) Parenting Time Interference: In some cases, denial or serious interference with parenting time may be good cause to change custody. This means that the custodial parent is not letting the other parent see the child, or is making it very hard for that parent to spend time with the child. Using this to try to change custody is often a last resort. It would be used only after trying other ways to get the custodial parent to follow a parenting time order has not worked. 17

18 Just because you file the motion to change custody does not mean that the court will okay it. It is not enough to say that you are the better parent in a motion to change custody. Two-stage hearing process There is a 2-stage process for changing custody. In the first hearing, the court will decide if what you have told them is enough for the court to change custody. What you have told the court means what you put down in your written affidavit of your motion to change custody. In the affidavit it is very important to tell the court everything you want them to think about in looking at your request to change custody. Make sure you put everything in your affidavit or in supporting affidavits from witnesses. The court does not have to consider anything that you say at the hearing that is not in the affidavit. If the court decides that your affidavit gives good reason to ask for a change in custody, there will be a second hearing. In the second hearing, you have to prove the facts that you wrote about in your affidavit. The court may order a custody evaluation to get updated information between the first and second hearing. What if I want joint physical custody? Joint physical custody is where the daily care, control and home of the child are shared between the parents. If no custody order has ever been decided, then the very first request for joint physical custody is decided under the best interests of the child standard (see page 16). In addition to the best interests factors, the court looks at some other factors when a parent asks for joint physical custody: If the parents can work together in raising their children; and, The ways for settling arguments with any major decision with the life of the child, and whether the parents are willing to use those ways; and, If it would be harmful to the child if one parent were to have all the control over the child s life; and, If domestic abuse has happened between the parents. Father-child interaction has been shown to promote a child s physical well-being, perceptual abilities and competency for relatedness with others, even at a young age. Krampe and Fairweather Journal of Family Issues When parents cannot agree about joint physical custody, the court is unlikely to order it. They will only order it in special situations. An important factor in getting the court to order joint physical custody is if the parents are able to show that they can work together. Another concern is whether the parents can easily move the child back and forth between their homes. The court looks at things like how close the parents live to one another, if they both have a car or another way to get the child around, and where the child s school or day care is located. Courts will look at how the parents have worked together on things in the past. If the court finds there has been domestic abuse between the parents, then the court assumes that joint physical custody is not in the best interests of the child. The parent asking for joint physical custody must prove otherwise. Joint physical custody is NOT easily granted in a custody case where the parents do not agree to it. 18

19 What things may make it more possible for me to be given joint physical custody? You and the child s mother have already been sharing physical custody, but you have never had a court order giving you both joint physical custody; You and child s mother can get along well when it comes to planning and/or making decisions for your child; You had the child in your home for long periods of time (for example, the child s mother left the child with you while she moved out of state and then returned a year later) or you took care of the child as much as the mother did; You can show in other ways that it is in the best interests of your child to have joint physical custody. Remember, you and the mother can agree to joint physical custody. What happens to child support if I am granted joint physical custody? You may still have to pay some child support if you are given joint physical custody. See the section on child support, starting on page 28. What happens if I was given parenting time by the court but now I want joint physical custody? Most orders that give parenting time also set physical custody. If custody has already been decided by a court order, but now you want to ask for joint physical custody, you must make a Motion to Change Custody of the child. For the motion to be heard by the court: 1) you must meet the time lines (see section on Changing Physical Custody), 2) you must be able to give facts that show good reason to change custody, and, 3) These facts must be ones in the list of what the court can look at. See the section on Changing Physical Custody. Just because you file the motion does not mean the court will make the change. If the child s mother does not agree to joint physical custody, and the child s mother has not let your child start living with you, then a change of custody can only be done by proving that the child is endangered by living in the mother s home. The danger can be physical or emotional. In general, if there is a case of endangerment in the current custodial parent s home, then joint physical custody would not be right anyway. In other words, you are likely to be granted joint physical custody after custody has been decided in only one situation: where the mother agrees. What is legal custody? Parents are often confused by the term legal custody. It is important to understand exactly what this term means. Legal custody is sometimes called decision making custody. It gives you the right to decide the child s upbringing, like choosing schools, making major medical decisions, and choosing religious training. The courts often give joint legal custody, which means that you and the other parent have the same rights to make the major decisions in your child s life. Legal custody is different from the courts deciding who the child should live with (physical custody) and what time the noncustodial parent spends with the child (parenting time). 19

20 Generally, if either parent asks for joint legal custody, then the court will often give joint legal custody to both parents. This is because Minnesota law presumes that joint legal custody is the best for the child. But, the court will not order joint legal custody if either parent can prove that it is not in the best interests of the child. Also, the court will often not order joint legal custody if there has been domestic abuse between the parents. If the parents do not agree on sharing joint legal custody, the court must consider 4 factors to decide if joint legal custody should be ordered. These are in addition to the 13 best interests factors listed on page 16. These factors are: If the parents can work together in raising their children and, The ways for settling arguments with any major decision with the life of the child, and whether the parents are willing to use those ways and, If it would be harmful to the child if one parent were to have all the control over the child s life and, If domestic abuse has happened between the parents. I thought I got legal custody when I signed the Recognition of Parentage (ROP)? No. Signing the ROP does not give you any legal rights to your child including legal custody but it is the starting point for you to go to court to ask for legal rights. In order for you to get joint legal custody, you must file a Motion to Establish Custody and Parenting Time. What is parenting time and how is it decided? Parenting time used to be called visitation. It is the time a parent spends with a child. It does not matter who is named as the custodial parent, but most people use the term parenting time to talk about the time the noncustodial parent spends with the child. The court decides parenting time according to the best interests of the child. The court cannot take away parenting time or stop you from having parenting time because you cannot pay child support. On the other hand, paying child support does not mean that you automatically have parenting time or that you will automatically get parenting time if you ask the court for it. Generally the court wants the noncustodial parent to have parenting time with the child, unless there are reasons it is a bad idea, like abuse or harm. In setting up parenting time, the court will look at things like: The age of the child and, What kind of relationship the child has had with the noncustodial parent. For example, how often has the noncustodial parent seen the child? Has the noncustodial parent s time with the child usually included overnights? Because the court wants to know about your past relationship with the child, it is a good idea to write things down, like the time you spend with your child. You can write it on a monthly calendar. Keep track of the dates and time that you spend with your child. Give this information to the court when you make your request for parenting time. This information can help the court when it is deciding how much parenting time to give you. What else will the court look at when deciding parenting time? On January 1, 2007, a new law started that says in the absence of other evidence, there is a rebuttable presumption that a parent is entitled to receive at least 25 percent of the parenting time for the child. 20